Kharana v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BHUPINDER KAUR KHARANA, 
Petitioner, No. 04-71335
v.
 Agency No.
A40-052-358
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 14, 2007—San Francisco, California
Filed May 29, 2007
Before: J. Clifford Wallace, Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge D.W. Nelson;
Concurrence by Judge Wallace
6371
KHARANA v. GONZALES 6373
COUNSEL
Saad Ahmad, Law Offices of Minter & Ahmad, Fremont, Cal-
ifornia, for the petitioner.
6374 KHARANA v. GONZALES
William C. Minick (argued) and Earle B. Wilson (briefed),
Office of Immigration Litigation, Civil Division, United
States Department of Justice, for the respondent.
OPINION
D.W. NELSON, Senior Circuit Judge:
This case concerns the meaning of Immigration and
Nationality Act (“INA”) § 101(a)(43)(M)(i), 8 U.S.C.
§ 1101(a)(43)(M)(i),1 which defines the term “aggravated fel-
ony” to include “an offense that . . . involves fraud or deceit
in which the loss to the victim or victims exceeds $10,000.”
We must decide whether a defendant who pleads guilty to
fraudulently appropriating more than $10,000 but subse-
quently makes her victims whole has “paid down” the “loss
to the victims” below the statutory threshold so that her
offense no longer qualifies as an aggravated felony. We
answer in the negative and deny the petition for review.
I. Background
In August 2001, Petitioner Bhupinder Kharana
(“Petitioner” or “Kharana”), a lawful permanent resident of
the United States, was charged in a state court with four
counts of obtaining money by false pretenses in violation of
California Penal Code § 532. The felony complaint alleged
that Petitioner, by “false and fraudulent representation[s] and
pretense[s], defraud[ed]” four victims of $11,000, $23,000,
$17,000, and $26,250, respectively. Petitioner pled nolo con-
tendere to all four counts. At some point thereafter, Petitioner
repaid the stolen money.2
1
Statutory references are to the INA unless otherwise indicated.
2
The parties dispute whether Kharana returned the money before or
after sentencing by the California court and whether she made “restitu-
KHARANA v. GONZALES 6375
In 2003, the Department of Homeland Security (“DHS”)
charged Kharana with removability under INA § 237(a)(2)
(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, DHS
alleged Kharana had been convicted, after admission to the
United States, of an aggravated felony within the meaning of
§ 101(a)(43)(M)(i). Arguing that her post-plea payment of
restitution reduced the loss to her victims below the $10,000
threshold, Kharana moved to terminate removal proceedings.
An Immigration Judge (“IJ”) denied the motion, found Peti-
tioner removable as charged, and ordered her removed to
India. The IJ reasoned that, in the context of a conviction
obtained by plea, the “loss to the victim or victims” under
§ 101(a)(43)(M)(i) means the amount of loss to which the
defendant pled guilty. The IJ noted that where the amount of
loss is not clear from the plea agreement or charging docu-
ments, the amount of court-imposed restitution may be a use-
ful indicator of loss. In Kharana’s case, however, the amount
of loss was apparent on the face of the felony complaint, and
the IJ considered any post-plea restitution to be irrelevant to
the inquiry.
Petitioner appealed to the Board of Immigration Appeals
(“BIA” or “Board”). In an unpublished, one-member decision,
the Board dismissed Kharana’s appeal, explaining that
“[r]estituion does not change the nature of the crime or the
fact that loss did occur.”3 This timely petition for review fol-
lowed.
(Text continued on page 6377)
tion” pursuant to a court order or on her own initiative. The administrative
record is unclear on both points. What is not in dispute is that, in entering
her plea, Kharana admitted to defrauding her victims of over $77,000. Fur-
ther, there is no question that Petitioner returned the money only after her
conduct was detected by law enforcement and made the subject of a crimi-
nal prosecution. Under these circumstances, we need not resolve the par-
ties’ factual disputes because the repayments had no effect on the nature
of the underlying crime or the fact that a certain level of loss occurred.
3
Citing Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999), the BIA also
suggested that even if Kharana’s crime did not cause any actual loss, it
6376 KHARANA v. GONZALES
could be considered an aggravated felony under INA § 101(a)(43)(U), 8
U.S.C. § 1101(a)(43)(U), which defines as an aggravated felony any “at-
tempt . . . to commit an [aggravated felony] offense.” Kharana argues that
because she was not charged with removability under § 101(a)(43)(U), the
Board violated her due process right to fair notice. However, because Kha-
rana was removable under § 101(a)(43)(M)(i) for causing actual losses in
excess of $10,000, it is irrelevant that the BIA suggested an alternative
uncharged ground for removal.
Our concurring colleague makes the related but distinct claim that Kha-
rana would be removable even if her crime did not cause any actual loss
because “intended loss satisfies section (M)(i)’s loss requirement.” Con-
curring op. at 4. Neither the BIA nor any court has so held and this is not
the law.
Read in context, this court’s statement in Li v. Ashcroft that, “if the
record of conviction demonstrates that the jury in Petitioner’s case actually
found that Petitioner caused, or intended to cause, a loss to the government
of more than $10,000, the modified categorical approach will be satis-
fied,” 389 F.3d 892, 897 (9th Cir. 2004), plainly means that where an alien
is found removable under both § 101(a)(43)(M)(i) and § 101(a)(43)(U), an
intent to defraud a victim of more than $10,000 satisfies the loss require-
ment under the latter subsection but not the former. That the Li court did
not differentiate between the two subsections in the same paragraph as the
quoted language does not imply otherwise. Elsewhere in the opinion, the
court was quite clear to contrast § 101(a)(43)(M)(i) which requires that
“the offense must also have resulted in a loss to the victim or victims of
more than $10,000,” 389 F.3d at 896, with § 101(a)(43)(U) under which
“intended loss can satisfy the [requirement],” id. n.8. See also Ming Lam
Sui v. INS, 250 F.3d 105, 118-19 (2d Cir. 2001) (holding that where an
alien has the requisite intent to defraud, but has not taken a substantial
step towards completion of the crime, the alien is not removable under the
attempt subsection—§ 101(a)(43)(U)—and “may [not] be removed pursu-
ant to subsection (M)(i) alone, since the loss to the victims as a result of
his actions did not exceed $10,000”).
Indeed, interpreting § 101(a)(43)(M)(i) such that a conviction involving
an unsuccessful attempt to obtain more than $10,000 counts as a convic-
tion “in which the loss to the victim or victims exceeds $10,000” flies in
the face of the plain meaning of the statute. Further, such an interpretation
would render subsection (U) nugatory as it relates to subsection (M)(i)
because all attempts to fraudulently obtain more than $10,000 under the
former subsection would also qualify as aggravated felonies under the lat-
KHARANA v. GONZALES 6377
II. Jurisdiction and Standard of Review
Because this case presents a question of law—whether
Kharana’s offense qualifies as an aggravated felony—we
have jurisdiction under 8 U.S.C. § 1252, as amended by the
REAL ID Act. See Morales-Alegria v. Gonzales, 449 F.3d
1051, 1053 (9th Cir. 2006). We review whether Kharana’s
conviction constitutes an aggravated felony de novo. Id.4
III. Analysis
[1] To determine whether Kharana was convicted of an
aggravated felony, we follow the two-step approach of Taylor
v. United States, 495 U.S. 575 (1990). Li v. Ashcroft, 389 F.3d
892, 895 (9th Cir. 2004). First, we make a categorical com-
parison of the generic crime—here the “aggravated felony”
defined in § 101(a)(43)(M)(i)—and the crime of conviction.
Id. If the crime of conviction is broader than the generic
crime, we employ a “modified categorical” approach to deter-
mine whether “the record . . . unequivocally establish[es] that
the [alien] pleaded guilty to all the elements of the generic
offense.” Id. at 896 n.7 (quotation and citation omitted).
ter subsection. Because of the traditional “deep reluctance to interpret a
statutory provision so as to render superfluous other provisions in the
same enactment,” Penn. Dept. of Public Welfare v. Davenport, 495 U.S.
552, 562 (1990) (superseded by statute on other grounds as stated in John-
son v. Home State Bank, 501 U.S. 78, 83 (1991)), such a construction is
impermissible.
4
The principles of deference to agency interpretations delineated in
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-44 (1984), are generally applicable when a court reviews the BIA’s
construction of the Immigration and Nationality Act. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). However, statutory interpretations
announced in unpublished one-member BIA opinions do not qualify for
Chevron deference because they do not represent an exercise of
congressionally-delegated lawmaking authority. Garcia-Quintero v. Gon-
zales, 455 F.3d 1006, 1014 (9th Cir. 2006). Because Kharana appeals from
an unpublished one-member opinion, and there is no binding agency pre-
cedent on-point (either in the form of a regulation or a published BIA
case), we do not apply Chevron.
6378 KHARANA v. GONZALES
[2] The elements of the relevant generic crime are “(1) the
offense ‘involves fraud or deceit,’ and (2) the ‘loss to the vic-
tim or victims exceeds $10,000.’ ” Ferreira v. Ashcroft, 390
F.3d 1091, 1096 (9th Cir. 2004). Petitioner was convicted of
violating California Penal Code § 532, which provides:
Every person who knowingly and designedly, by any
false or fraudulent representation or pretense,
defrauds any other person of money, labor, or prop-
erty, whether real or personal, or who causes or pro-
cures others to report falsely of his or her wealth or
mercantile character, and by thus imposing upon any
person obtains credit, and thereby fraudulently gets
possession of money or property, or obtains the labor
or service of another, is punishable in the same man-
ner and to the same extent as for larceny of the
money or property so obtained.
Cal. Penal Code § 532(a) (West 2006) (emphases added).
[3] We have no difficulty determining that a conviction
under California Penal Code § 532 is categorically a convic-
tion involving fraud or deceit. See, e.g., People v. Ashley, 267
P.2d 271, 279 (Cal. 1954) (intent to defraud is a necessary
element of theft by false pretenses). With respect to the “loss
to the victim(s)” element, however, the statute of conviction
clearly criminalizes a broader range of conduct than the
generic offense.
[4] Therefore, the question before this court is whether,
pursuant to “a limited examination of documents in the record
of conviction,” Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.
2002), we may conclude that Kharana’s conviction involved
a loss to her victim or victims in excess of $10,000. The “re-
cord of conviction” includes, among other things, the criminal
charging document, guilty pleas, and the judgment. Ferreira,
390 F.3d at 1095.
KHARANA v. GONZALES 6379
[5] In this case, the state charging document alleged that
Kharana caused her victims to suffer more than $10,000 in
losses. The losses outstanding at the time of Kharana’s plea
were accurately reflected in the felony complaint. This would
seem a sufficient ground to conclude that the conviction
involved a loss greater than $10,000. However, Kharana con-
tends on appeal that she “paid down” the losses to her victims
to $0 and is therefore not removable as charged.
[6] Petitioner asserts that because the INA fails to define
“loss to the victim or victims” with any precision, we ought
to look to the manner in which losses are calculated for the
purpose of determining offense levels under the United States
Sentencing Guidelines (“USSG” or “Guidelines”). Under the
Guidelines, the offense level for a basic economic crime such
as theft by false pretenses may be increased depending on the
dollar amount of “loss” occasioned by the crime. U.S. Sen-
tencing Guidelines Manual § 2B1.1(b)(1) (2006). Kharana
asserts that where a criminal defendant restores stolen money
or property prior to sentencing, a court applying the guide-
lines must credit the restored amount against the loss calcula-
tion.
[7] We do not decide whether the approach to calculating
loss under the Guidelines should be transported into the
removal context. Even if the meaning of loss under the Guide-
lines was relevant to the “loss to the victim or victims” calcu-
lation under the INA, Petitioner would not benefit. Kharana
simply misunderstands the Guidelines’ treatment of loss.
Under the Guidelines, the “actual loss” occasioned by an eco-
nomic offense is the “reasonably foreseeable pecuniary harm
that resulted from the offense.” U.S. Sentencing Guidelines
Manual § 2B1.1 cmt. n.3(A)(i) (2006). However, the Guide-
lines do not count amounts stolen by a criminal defendant but
then returned to the victim before the offense was detected as
losses. U.S. Sentencing Guidelines Manual § 2B1.1 cmt.
n.3(E)(i) (2006). In contrast, a defendant who returns stolen
money only after detection does not receive a so-called credit
6380 KHARANA v. GONZALES
against loss. United States v. Bright, 353 F.3d 1114, 1118 (9th
Cir. 2004). This is so because “ ‘[r]epayments before detec-
tion show an untainted intent to reduce . . . loss,’ whereas
‘[r]epayments after detection may show no more than an
effort to reduce accountability.’ ” Id. (quoting United States v.
Stoddard, 150 F.3d 1140, 1146 (9th Cir. 1998)); see also
United States v. Mummert, 34 F.3d 201, 204 (3d Cir. 1994)
(“A defendant in a fraud case should not be able to reduce the
amount of loss for sentencing purposes by offering to make
restitution after being caught.”) (cited with approval in United
States v. Davoudi, 172 F.3d 1130, 1135 (9th Cir. 1999)).
[8] In this case, Kharana repaid the stolen money only after
her fraudulent scheme was discovered, and indeed only after
she had been the subject of a criminal prosecution. Under the
USSG, a reduction in the amount of loss on this basis would
“distort the magnitude of [her] crime” and would be inappro-
priate. Bright, 353 F.3d at 1119. Therefore, even if we
assumed, without deciding, that the USSG provided guidance
as to the proper method of calculating loss, Kharana would
not benefit.5
5
Petitioner misreads United States v. Galbraith, 20 F.3d 1054 (10th Cir.
1994). That case decidedly does not hold, as Petitioner argues, “that if a
defendant makes restitution of all or part of a loss prior to sentencing, the
actual loss to [the] victim(s) is reduced under the Federal Sentencing
Guidelines.” Galbraith did not involve the payment of restitution at all.
Indeed, the case did not even involve a calculation of “actual loss” under
the Guidelines. Rather, Galbraith holds that, where there is no actual loss
because the “victim” was a creation of law enforcement during a sting
operation and could not possibly be harmed, the amount of “intended or
probable loss,” used as an alternate measure, is zero. Not only is this case
irrelevant to Kharana’s petition for review, but this court has expressly
disapproved the reasoning and holding in Galbraith and it has no prece-
dential value here. United States v. Robinson, 94 F.3d 1325, 1328-29 (9th
Cir. 1996).
Neither does United States v. Davoudi, 172 F.3d 1130 (9th Cir. 1999),
provide support for Petitioner. That case merely stands for the proposition
that the amount of loss caused in a fraudulent loan case does not include
amounts the defrauded lender may recover from assets pledged to secure
the loan. Id. at 1135. Recovery by a lender of collateral securing a loan
does not constitute restitution. Nor did Kharana fraudulently obtain a loan.
Davoudi is not pertinent to this case.
KHARANA v. GONZALES 6381
The petition for review is DENIED.
WALLACE, Circuit Judge, concurring in the judgment:
Kharana is deportable if she was “convicted of an aggra-
vated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), which is defined
as an “offense . . . involv[ing] fraud or deceit in which the loss
to the victim or victims exceeds $10,000,” 8 U.S.C.
§ 1101(a)(43)(M)(i). There is no dispute that Kharana’s con-
viction under California Penal Code § 532(a) was for an
offense involving “fraud or deceit.” However, because section
532(a) does not require that the victim or victims incur loss,
Kharana’s statute of conviction is not a categorical match for
subsection (M)(i). See Taylor v. United States, 495 U.S. 575,
599-602 (1990).
We may look to the state charging document, among other
things, to determine whether Kharana’s conviction involved
loss to her victims exceeding $10,000. See Ferreira v. Ash-
croft, 390 F.3d 1091, 1095 (9th Cir. 2004). The felony com-
plaint states that Kharana “did knowingly and designedly, and
by false and fraudulent representation and pretense, defraud”
her victims of more than $77,000. The felony complaint thus
indicates losses that far exceed those required to qualify Kha-
rana as an aggravated felon. One would think that would end
the matter.
Kharana suggests, however, that because she made full res-
titution before the date of her sentencing, the loss to her vic-
tims did not exceed $10,000, and therefore her conviction
does not qualify as an aggravated felony.
The Immigration and Nationality Act (INA) does not define
“loss to the victim or victims,” but the issue has been raised
in cases. In In re Onyido, the petitioner fraudulently sought a
$60,000 payment from an insurance company on a medical
6382 KHARANA v. GONZALES
policy, but agreed to settle for $15,000. 22 I. & N. Dec. 552,
553 (BIA 1999) (en banc). When he arrived at a meeting to
sign a release and collect the $15,000, he was arrested. Id. at
554. After the petitioner was convicted under state law for
fraud, an Immigration Judge (IJ) held that he was deportable
under subsection (M)(i) as well as under 8 U.S.C.
§ 1101(a)(43)(U), which defines an aggravated felony as “an
attempt or conspiracy to commit an offense described in [sec-
tion 1101(a)(43)].” Id. at 553-54.
The Board of Immigration Appeals (Board) affirmed the
IJ’s subsection (U) determination and rejected the petitioner’s
contention that the subsection requires the victim to have suf-
fered an “actual loss” that exceeds $10,000. Id. at 554.
Although the petitioner had not been convicted of attempted
fraud, the Board reasoned that his “actions support a convic-
tion for attempted fraud which is a lesser included offense
within a conviction for fraud under Indiana law.” Id. Accord-
ing to the Board, the petitioner’s failure to obtain the $15,000
therefore had “no consequence” under subsection (U). Id. The
Board did not address whether the petitioner was also deport-
able under subsection (M)(i). Id. at 554-55.
We interpreted Onyido in Li v. Ashcroft, where the peti-
tioner was convicted of eight fraud-related federal offenses.
389 F.3d 892, 894-97 (9th Cir. 2004). The former Immigra-
tion and Naturalization Service (INS) charged the petitioner
as removable under section 1227(a)(2)(A)(iii) as one who had
committed an aggravated felony as defined in subsections
(M)(i), (U), and 8 U.S.C. § 1101(a)(43)(G), which defines an
aggravated felony as “a theft offense . . . for which the term
of imprisonment [is] at least one year.” Id. at 894. The IJ
agreed with the INS with respect to subsections (M)(i) and
(U) and did not rule on the argument under subsection (G). Id.
at 894-95. The Board affirmed. Id. at 895.
On petition for review, we held that the record of convic-
tion was not adequate to establish that the jury actually found
KHARANA v. GONZALES 6383
the requisite amount of loss. Id. at 899. Our discussion of the
generic crimes at issue in the case is revealing. Citing Onyido,
we set forth the two elements of the subsection (M)(i) generic
crime — fraud and loss — and stated that either “[p]otential
or intended loss” satisfy the second element under subsection
(U). Id. at 896 n.8. Li thus establishes Onyido’s holding as the
law of this circuit. Cf. Sui v. INS, 250 F.3d 105, 115 (2d Cir.
2001) (according Onyido deference under Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984),
and holding that the Board’s interpretation of subsection (U)
was reasonable).
Arguably, Li went on to answer the question left open by
Onyido: whether intended loss can satisfy subsection (M)(i)’s
loss requirement. Without differentiating between the generic
crimes set forth in subsections (M)(i) and (U), Li stated that
“if the record of conviction demonstrates that . . . Petitioner
caused, or intended to cause, a loss . . . of more than $10,000,
the modified categorical approach will be satisfied.” 389 F.3d
at 897 (emphasis added). Li suggests that Kharana’s argument
concerning her victims’ losses after restitution is mistaken
because intended loss satisfies subsection (M)(i)’s loss
requirement, and it is undisputed that her record of conviction
establishes her intent to defraud her victims of an amount in
excess of $10,000.
In any case, this is the proper interpretation of subsection
(M)(i), and I support it. By its plain terms, subsection (U)
does not provide any additional gloss on the term “loss” as it
appears in subsection (M)(i). “Loss” therefore has the same
meaning regardless of whether the alien is charged under sub-
sections (M)(i) or (U). Because we have held that “loss”
means intended loss under subsection (U), this holding
applies with equal force under subsection (M)(i).
This makes sense. In many cases, such as the one now
before us, the fact of restitution will not be reflected in the
record of a fraud conviction because restitution bears neither
6384 KHARANA v. GONZALES
on the criminal act itself nor on the mental element required
for criminal liability. Subsection (M)(i), in my view, should
not be interpreted to require the government to establish facts
unrelated to the elements of a typical completed fraud offense.
True, a person subject to prosecution for a fraud offense may
offer evidence that she returned money or the like to her vic-
tim that she did not intend to obtain. But the weight of this
evidence will be reflected in the fact-finder’s determination
with respect to intended losses. This finding, in turn, will
decide whether the criminal alien is eligible for deportation.
I disagree with the majority that this interpretation neces-
sarily renders subsection (U) nugatory as it relates to subsec-
tion (M)(i). A criminal convicted only of attempting to
commit an offense involving fraud or deceit may still be
removable under the former section, but not the latter.
Once more, this should end our discussion. But based on
two drive-by references to the United States Sentencing
Guidelines (Guidelines) suggesting “a judge is required to
make specific findings as to the amount of loss to compute
defendant’s punishment,” the majority advances an unneces-
sary argument that I question.
The INA and the Guidelines are not necessarily “similar
statutes . . . to be interpreted in a similar manner.” United
States v. Ressam, 474 F.3d 597, 602 (9th Cir. 2007). The
Supreme Court has described “deportation as a ‘purely civil
action’ separate and distinct from a criminal proceeding.”
United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.
2002), quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038
(1984). “[D]eportation is not punishment for the crime.” Id.
The argument compares apples to oranges.
In addition, reliance on the Guidelines is misplaced. Under
the Guidelines, a defendant’s offense level increases with the
amount of “loss” occasioned by her crime. U.S. Sentencing
Guidelines Manual § 2B1.1(b)(1) (2006). The sentencing
KHARANA v. GONZALES 6385
court is instructed that “loss is the greater of actual loss or
intended loss.” Id. at § 2B1.1 cmt. n.3(A). “ ‘Actual loss’
means the reasonably foreseeable pecuniary harm that
resulted from the offense,” whereas “ ‘[i]ntended loss’ [ ]
means the pecuniary harm that was intended to result from the
offense; and [ ] includes intended pecuniary harm that would
have been impossible or unlikely to occur.” Id. at § 2B1.1
cmt. n.3(A)(i), (ii). Regardless of which measurement of loss
is used, the Guidelines require that the court “credit[ ] against
loss” the amount the defendant returned to the victim before
the offense was detected. Id. at § 2B1.1 cmt. n.3(E)(i). This
is so because “[r]epayments before detection show an
untainted intent to reduce any loss.” United States v. Bright,
353 F.3d 1114, 1118 (9th Cir. 2004) (quotation marks and
citation omitted).
Credit against loss is not loss, and there is no credit-
against-loss provision in the aggravated felony statute. Like-
wise, the intent to repay a loss is not the same as the absence
of intent to cause a loss in the first instance. Therefore, to the
extent Kharana may have made restitution, such restitution
does not implicate, for subsection (M)(i) purposes, the amount
of loss to her victims.
The majority, as I understand the argument, determines that
Kharana does not in fact qualify for a downward departure
under section 2B1.1 cmt. n.3(E)(i) because she did not make
restitution before her offense was detected. The majority thus
concludes that even if Kharana’s eligibility for sentencing
relief were relevant to our interpretation of subsection (M)(i),
she does not satisfy the conditions of her own argument.
The majority has no basis for determining that Kharana
made restitution at all, let alone only after her offense was
detected. Neither the Board nor the IJ made findings on the
issue. The parties’ briefs are contradictory, the record of con-
viction is unrevealing, and oral argument did not clarify mat-
ters. Kharana’s counsel answered “Yes” to the question, “Is
6386 KHARANA v. GONZALES
it true that on the date of her plea, the felony complaint accu-
rately stated the losses caused by Mrs. Kharana’s conduct?”
Tr. of Oral Argument at 0:40-0:55, Kharana v. Gonzales, No.
04-71335 (Feb. 14, 2007). But counsel also said that “the vast
majority of the restitution, which was under $10,000, was
paid before [Kharana] pled guilty to the crime.” Id. at 1:30-
1:47. This latter statement leaves open the possibility that res-
titution occurred prior to detection.
The majority’s position is made all the more perplexing by
its statement that Kharana is removable for having “caused
actual losses in excess of $10,000.” Majority Op. at n.3. The
majority does not tell us what “actual loss” means or how it
is calculated, and it does not explain why subsection (M)(i)
encompasses this principle of loss. If actual loss necessarily
excludes amounts returned to the victim, then why does the
majority assume, without deciding, that the Guidelines’
credit-against-loss provision is relevant to our interpretation
of subsection (M)(i)? If, on the other hand, actual loss
accounts for amounts returned to the victim, then why does
Kharana nevertheless qualify as an aggravated felon? The
majority fails to answer these necessary questions.
Therefore, I would not address, in dicta or otherwise, when
any restitution occurred. Kharana became deportable when
she pled guilty to knowingly and fraudulently taking posses-
sion of the money. See Cal. Penal Code § 532(a).